Fifth Circuit Throws Out Challenge to Texas Ban on Boycotting Israel

A man walks in front of the Fifth U.S. Circuit Court of Appeals in New Orleans in January 2015. (AP photo/Jonathan Bachman)

(CN) — In litigation challenging a Texas law blocking state agencies from hiring companies boycotting Israel, the Fifth Circuit ordered dismissal of the case Monday but declined to decide if the law is constitutional.

Bahia Amawi, a Palestinian U.S. citizen, had worked for the Pflugerville Independent School District for nearly a decade as a speech therapist for kindergarteners when the school district offered to renew her contract for the 2018-2019 school year.

She refused due to a new clause in the contract requiring her to certify that she does not boycott Israel nor would she do so while working for the school district.

Texas joined 25 other states with similar legislation when lawmakers passed House Bill 89 and Republican Governor Greg Abbott signed it in 2017.

The so-called “No Boycott of Israel” bill’s sponsor, Representative Phil King, R-Weatherford, told news outlets in 2017 he introduced the legislation because as a Christian he felt his religious heritage is linked to Israel and the Jewish people, America’s national security depends on having Israel as an ally in the Middle East, and Texas has a large Jewish population and does a lot of business with Israel.

Amawi sued Texas Attorney General Ken Paxton and Pflugerville ISD in Austin federal court in May 2018, claiming HB 89 violates her First Amendment free speech rights.

She said in court filings she refuses to buy Sabra brand hummus due to its connections with Israel and only buys Palestinian olive oil. Sabra is owned by the Israeli company Strauss, which has publicly stated it donates food to the Israeli Defense Forces.

Amawi testified she is part of the Boycott, Divestment and Sanctions movement against Israel, based on South Africa’s anti-apartheid movement, in support of her family living in Palestine, who she claims is subject to curfews imposed by the Israeli government that last for weeks and prevent Palestinians from buying groceries and going to doctor’s appointments and block their children from attending school.

U.S. District Judge Robert Pitman, an Obama appointee, granted an injunction after consolidating Amawi’s case in January 2019 with a parallel challenge brought by four men, two of whom are of Middle Eastern descent and claim two Texas school districts denied them work as debate coaches because they refused to agree not to boycott Israel.

John Pluecker, an Arabic translator who joined the BDS movement in support of his Palestinian friends, said the University of Houston refused to pay him for translating an essay after he crossed out the anti-boycott clause in the contract. He sued the University of Houston Board of Regents.

His co-plaintiff George Hale said in court filings he came to sympathize with the Palestinian people’s plight while living with them in Bethlehem from 2008 to 2016.

Hale sued the Texas A&M University System’s board of regents, alleging a school official threatened to fire him from his job as a public radio journalist at Texas A&M University-Commerce if he did not sign the pro-Israel clause in his contract.

After Paxton, the school districts and the board of regents appealed to the Fifth Circuit in New Orleans asking it to vacate Pitman’s injunction in spring 2019, Governor Abbott signed an amendment of HB 89. House Bill 793 modified the law so it no longer applies to sole proprietorships, only to businesses worth more than $100,000 with 10 or more employees.

Though the challengers argue the amendment did not moot their claims because Texas school districts continue to enforce the anti-boycott clause, the Fifth Circuit disagreed Monday.  

“We have decided that this appeal is moot because, twelve days after the district court’s ruling, Texas enacted final legislation that exempts sole proprietors from the ‘No Boycott of Israel’ certification requirement,” Senior U.S. Circuit Judge Grady Jolly wrote for a unanimous three-judge panel.

He continued: “The plaintiffs are all sole proprietors. Because they are no longer affected by the legislation, they lack a personal stake in the outcome of this litigation.”

Jolly, a Reagan appointee, declined to weigh in on the merits of the challengers’ constitutional claims.

The panel vacated Pitman’s order and remanded the case to him to enter a judgment dismissing the lawsuits.

Edgar Saldivar, with the American Civil Liberties Union of Texas, represented Pluecker, the Arabic translator. He said the litigation was successful despite the dismissal order.

“The Fifth Circuit ruling today simply affirms that the legislature’s retreat means Mr. Pluecker, the other plaintiffs, and other Texans whose livelihood is dependent on government contracts can no longer be forced to disavow their First Amendment right to boycott,” he said. “The government cannot impose ideological litmus tests or tell Texans what issues they may or may not support as a condition of hiring.”

One of lead plaintiff Amawi’s attorneys, Gadeir Abbas with the Counsel on American-Islamic Relations in Washington, D.C., indicated another challenge of the Texas law could be coming.

“The Fifth Circuit’s decision means the Texas legislature’s efforts to avoid an inevitable judicial reckoning about these illegal anti-BDS laws that punish people for exercising their First Amendment rights succeeded – for the moment. But these laws invite challenges, and we expect to see more litigation of this anti-BDS law,” he said.

Paxton’s office did not immediately respond Monday afternoon to a request for comment on the order.

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